Moultrie v. Captain James

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

EDDIE JAMES MOULTRIE,

Plaintiff,

v. Case No. 3:23-cv-472-MMH-JBT

CAPTAIN JAMES, et al.,

Defendants.

___________________________

ORDER

I. Status

Plaintiff Eddie James Moultrie, an inmate in the Florida Department of

Corrections (FDOC), initiated this case by filing a pro se Civil Rights

Complaint (Doc. 1) against Captain James and Officer Hansen. Moultrie

alleges Defendants violated his Eighth Amendment right to be free from cruel

and unusual punishment by ordering or using excessive force against him.

Before the Court is Defendants’ Motion to Dismiss (Doc. 25; Motion).

Moultrie filed a response in opposition to the Motion (Doc. 27; Response). The

Motion is ripe for review.

II. Complaint1

According to Moultrie, on May 26, 2022, while housed in administrative

confinement, Moultrie began complaining to correctional staff about his

inability to sleep and the resulting effects. Complaint at 7. Security staff

advised Moultrie “there was nothing they could do and so [Moultrie] declared

a mental health emergency.” Id. At that time, Moultrie “was already a prisoner

classified with a S-3 mental health grade and prescribed medication to assist

in managing [his] mental health.” Id. In response to his declared mental health

emergency, staff removed Moultrie from his cell and placed him in a holding

cell to monitor his mental health status. Id.

Later, staff returned Moultrie to his cell, but because Moultrie felt as

though he was in “imminent danger,” he “refused to submit to hand-

restraints.” Id. Defendant James arrived at Moultrie’s cell, and Moultrie

explained to him “why it was dangerous for [him] to be housed with a

roommate,” but Defendant James “was not concerned and so a camera operator

was called in anticipation of a use of force.” Id. at 8. Moultrie “eventually

1 In considering the Motion, the Court must accept all factual allegations in the

Complaint as true, consider the allegations in the light most favorable to Moultrie,

and accept all reasonable inferences that can be drawn from such allegations. Hill v.

White, 321 F.3d 1334, 1335 (11th Cir. 2003); Jackson v. Okaloosa Cnty., 21 F.3d 1531,

1534 (11th Cir. 1994). As such, the facts recited here are drawn from the Complaint,

and may well differ from those that ultimately can be proved.

2

submitted to hand-restraints and was moved to the shower where [he]

submitted to a strip search and beg[a]n to comply with orders to return to [his]

original cell.” Id. However, “the fear of reality settled in and [Moultrie] instead

threw [him]self into the shower door screaming staff assault while laying down

on [his] stomach refusing to stand up hoping [his] behavior would sway

securit[y’s] intent however it did not.” Id.

Additional security staff arrived to assist placing leg restraints on

Moultrie, and they carried him to his cell. Id. During the transport, Defendant

James directed staff to house Moultrie in a vacant cell, “but one of [Defendant

James’s] subordinates overrode his authority and [Moultrie] was forced back

in [his] original cell with a roommate.” Id. Staff removed Moultrie’s leg

restraints, but after his cell door was closed, Moultrie refused to relinquish his

hand restraints. Id. Staff turned off the use of force camera. Id.

“Seconds later,” Defendant Hansen approached Moultrie’s cell, stared at

Moultrie through the cell window while Moultrie was on the toilet, and then

motioned another officer over and sprayed chemical agents into Moultrie’s cell

without warning. Id. at 8-9. Staff turned the use of force camera back on, and

Moultrie was taken to a decontamination shower and then to a medical exam.

Id. at 9. Staff then rehoused Moultrie in a vacant cell without incident. Id.

3

Moultrie did not receive a disciplinary report, but staff placed him on

heightened security status and eight days later, he was referred to close

management. Id. The close management referral stated: “On 5/26/2022

[Moultrie] was observed holding [his] roommate in a headlock actively choking

him and chemical agents w[ere] used to prevent further harm to [Moultrie’s]

roommate and that later during the use of force[, Moultrie] attempted to kick

at staff.” Id. According to Moultrie, however, “Defendant(s) intentionally

manipulated the facts creating false, misleading and inaccurate information

which unfortunately got [Moultrie] approved for CMII status.” Id.

As a result of these actions, Moultrie asserts that Defendant James

violated his Eighth Amendment rights by “deliberately authorizing force to be

used to put [Moultrie] in a cell with another inmate after [Moultrie] blatantly

informed [Defendant James] that [Moultrie] was under mental distress and in

fear of [his] life,” and Defendant Hansen, “motivated by retaliation[,]

maliciously and sadistically inflicted unnecessary and wanton pain when he

sprayed [Moultrie] with chemical agents.” Id. at 5.2 Moultrie seeks

2 In Moultrie’s Response, he confirms that the only claim he raises against Defendant

Hansen is a violation of the Eighth Amendment for use of excessive force when

Hansen sprayed Moultrie with chemical agents. Response at 17 (“[N]owhere in the

complaint has [Moultrie] made any allegations accusing Defendant Hansen of

violating his rights under the First Amendment. . . . [Moultrie] only accused

4

compensatory and punitive damages for the time he spent on close

management, along with compensatory damages for “physical pain from the

chemical agents, personal humiliation, mental anguish, emotional distress,”

and the diminished quality of life he endured while on close management. Id.

at 10. He seeks punitive damages against “Defendant James who acted with

reckless indifference to [his] safety by using force to put [him] in the cell with

a roommate after [Moultrie] not only warned [James] that [Moultrie] was in

fear of [his] life [but Moultrie] also had to become unruly and [James] being

the supervisor still allowed [Moultrie’s] life to be placed in danger.” Id. Moultrie

also seeks punitive damages against Defendant Hansen for spraying Moultrie

with chemical agents while he was in hand restraints and then subsequently

falsifying his report which caused Moultrie to be wrongfully placed on close

management.3 Id.

III. Motion to Dismiss Standard

In ruling on a motion to dismiss, the Court must accept the factual

allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S.

Defendant Hansen of violating his Eighth Amendment right . . . when he deliberately

sprayed [Moultrie] unnecessarily with chemical agents.”).

3 Moultrie states in his Response that “[t]he defense also alleges [Moultrie] accused

Defendant Hansen of fabricating the Report of Close Management . . . . However that

too never happened.” Response at 17.

5

662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see

also Lotierzo v. Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir.

2002). In addition, all reasonable inferences should be drawn in favor of the

plaintiff. See Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). Nonetheless,

the plaintiff must still meet some minimal pleading requirements. Jackson v.

BellSouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004). Indeed, while

“[s]pecific facts are not necessary[,]” the complaint should “‘give the defendant

fair notice of what the . . . claim is and the grounds upon which it rests.’”

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege

“enough facts to state a claim to relief that is plausible on its face.” Twombly,

550 U.S. at 570. “A claim has facial plausibility when the pleaded factual

content allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly,

550 U.S. at 556).

A “plaintiff’s obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (internal

quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that

“conclusory allegations, unwarranted deductions of facts or legal conclusions

6

masquerading as facts will not prevent dismissal”) (internal citation and

quotations omitted). Indeed, “the tenet that a court must accept as true all of

the allegations contained in a complaint is inapplicable to legal conclusions[,]”

which simply “are not entitled to [an] assumption of truth.” Iqbal, 556 U.S. at

678, 680. Thus, in ruling on a motion to dismiss, the Court must determine

whether the complaint contains “sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face[.]’” Id. at 678 (quoting

Twombly, 550 U.S. at 570).

IV. Discussion

In the Motion, Defendants contend that Moultrie failed to exhaust his

administrative remedies prior to filing this case.4 See Motion at 4-13. They

acknowledge that Moultrie filed several grievances, but argue that none of

those grievances addressed the issues raised in the Complaint and Moultrie

did not properly comply with the FDOC’s three-step grievance process. See id.

In Moultrie’s Response, Moultrie contends that the institution was not

processing grievances, so “to protect hi[m]self in case an issue such as this

arises,” he would send a duplicate copy of his formal grievances to the

4 Defendants raise other arguments as well. However, because the Court finds that

Moultrie failed to exhaust his administrative remedies prior to filing this case, the

Court need not address Defendants’ other arguments.

7

Secretary’s office. See Response at 5-6. He argues that the grievance logs show

that his grievances at the institutional level were not being processed until

June 16, 2022, which was two days after the Secretary’s office responded to his

grievance appeal regarding the breakdown in the grievance process at the

institutional level. See id. at 6 (“It’s no coinciden[ce] that the Institution didn’t

start processing grievances until two days after the Central Office was made

aware they were not processing them.”). Moultrie concludes that “reasonable

factfinders can see the connection that further solidifies [his] factual claim that

the Institution made it impossible for him to complete the first two-steps of the

grievance process within the ‘20 days from the time [the] event being grieved

occurred.’” Id. at 6-7.

a. Moultrie’s Exhaustion Efforts

Between May 26, 2022 (the date of the incident) and April 24, 2023 (the

date the Clerk opened this case), the grievance summaries attached to

Defendants’ Motion show that Moultrie submitted 91 informal grievances and

41 formal grievances. See Doc. 25-2 at 3-7, 13-15. According to the Declaration

of Officer C. Davis-Cotton, the informal grievance coordinator at Santa Rosa

Correctional Institution, Moultrie filed four informal grievances relating to the

May 26, 2022 incident, all of which the institution returned, and three formal

grievances relating to the May 26, 2022 incident that were either denied (log

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#2206-201-112 and #2206-201-140) or returned without action for bypassing

the previous level of review (log #2208-510-070). Id. at 1. The institution did

not approve any informal or formal grievances in relation to the use of force

incident on May 26, 2022. Id. at 1-2.

During that same timeframe, Moultrie submitted 36 grievance appeals,

five of which related to the May 26, 2022 incident. See Declaration of Lawanda

Sanders-Williams (Doc. 25-1) at 1; see also id. at 3-6. The Secretary’s office

returned three of those appeals and denied two. Id. at 1. Moultrie did not have

any approved grievance appeals concerning the May 26, 2022 incident. Id. at

1-2. The following is a summary of Moultrie’s relevant informal grievances,

formal grievances, and grievance appeals and the responses thereto.

Moultrie authored the first relevant informal grievance on June 20, 2022

(log #201-2206-0180), noting that classification failed to respond to his request

for information and he asked why he had been housed in confinement without

a disciplinary report from April 29, 2022, leading up to the May 26, 2022

incident. Doc. 25-2 at 8. The institution returned without action the grievance

because Moultrie’s grievance addressed more than one issue or complaint. Id.

at 9. Moultrie then authored three informal grievances seeking the use of force

incident number for the May 26, 2022 use of force or otherwise complaining

about not receiving responses to other requests for the incident number. Id. at

9

10 (dated July 11, 2022; log #201-2207-0125), 11 (dated August 6, 2022; log

#510-2208-0117), 12 (dated August 20, 2022; log #510-2208-0548). The

institution returned all three informal grievances. See id.

On June 16, 2022, Moultrie submitted a formal grievance (log #2206-201-

112) indicating that he previously submitted a formal grievance requesting the

institution retain the use of force video evidence from the May 26, 2022

incident but that he had not received a response. Id. at 17. He stated that the

video would show “that prior to having chemical agents used against [him, he]

was still in hand-restraints and that after chemical agents w[ere] used against

[him, he] was not non-compliant and refused to return to [his] cell.” Id. The

Acting Warden denied the grievance, noting that the institution had not

received a prior request relating to retention of video evidence, but that the

Office of the Inspector General is required to retain and retrieve all related

video and audio recordings that record a use of force incident. Id. at 16.

Next, on June 21, 2022, Moultrie submitted a formal grievance (log

#2206-201-140), “[i]n reference to [his] fabricated Close Management

Referral.” Id. at 19. Moultrie requested an investigation into CLO Minshew

“for filing a false referral against [him] on 06/02/22 which resulted in an

approved CM2 placement.” Id. Moultrie continued:

10

On May 26, 2022, I was outside of my cell for I

declared a psychological emergency being that I

overdosed on my medication and was hallucinating.

After seeing the Mental Health Counselor I was placed

in the holding cell awaiting authorization from

Counselor’s supervisor who erroneously reverted my

situation back to security. Security wanted to place me

back in the cell [with] my cellmate which I refused and

so the “hand-held” video camera was brought out. I

was moved from the holding cell to the shower where

upon a strip search was conducted. After the search

security still wanted to put me in the cell with my

cellmate and so I threw myself into the shower door all

while screaming the shift supervisor did it and fell to

the floor on my stomach hoping this type of behavior

would change securit[y’s] decision on putting me in the

cell with someone however it did not. Additional staff

was then called and I was carried to the cell,

whereupon my cellmate was ordered into hand-

restraints and instructed to stand in the back of the

cell and officers brought me in and la[i]d me on the

floor and left securing the cell door. As the video shall

reflect I refused to relinquish my hand-restraints so

my cellmate and I were both left in hand-restraints

whereupon an officer returned a few seconds [later]

and utilized chemical agents on me. I was then t[a]ken

out [of] the cell and placed in the decontamination

shower and seen [by] medical all while being escorted

by the shift supervisor and (1) officer, and finally

placed in a cell by myself.

So as you can see if the video of the use-of-force

is reviewed you’ll conclude it coincides with my

statement of facts for it would’ve been impossible to

choke my cellmate when we both were in hand

restraints the entire time I was in the cell. It would

[have] also been impossible to kick staff while laying

on my stomach.

11

To add more dishonesty to CLO Minshew[’]s

character he put in a recommendation that I was

released from Close Management on 05/21/2022. I

came to Columbia CI on 04-14-2022 from another

general population institution. I got off of CM for the

first and only time [i]n February 2020.

Through CLO Minshew[’]s action and behavior

he’s shown multiple acts of bad-faith. His actions

exhibit a wanton and willful disregard of my right to

liberty, such as wrongfully seeking me to be placed in

segregation depriving me of privileges. CLO Minshew

most certainly acted outside the scope of his

employment and professionalism seeking to concoct

and or misrepresent the facts in order to have me

recommended and approved for CM status. He acted

with reckless indifference to my rights. His intent was

completely maliciously motivated and again if the

investigator of the grievance was to review the entire

event via hand-held video camera they shall concur

with my statement of facts.

Id. at 19-20.

The institution denied Moultrie’s formal grievance, stating:

Custody decisions, and institutional and

program assignments are made in accordance with

security interests and the program and treatment

needs of the inmate. These decisions are based on the

professional judgment and correctional experience of

staff involved. Your placement in close management

has been through your own behavior. Your record

reveals that you have demonstrated an inability to live

in the general population without abusing the rights

and privileges of other inmates or disturbing the

security, order or operation of the institution.

Furthermore, you are advised that it is not within an

inmate’s scope of responsibility or authority to

12

recommend disciplinary action regarding staff. Your

complaint was addressed and responded to; any

further action will be at the discretion of the

administrative staff.

Id. at 18.

Next, Moultrie submitted a formal grievance (log #2208-510-070)

complaining about the response he received to his August 6, 2022 informal

grievance, which advised Moultrie that he needed to submit a request to

Columbia Correctional Institution where the incident occurred. Id. at 23. The

institution returned without action his formal grievance “for by-passing the

previous level of review as required,” because the institution had “returned

without action or processing” the informal grievance he complained about, and

the rules require that an informal grievance be “denied before a formal

grievance can be initiated.” Id. at 22.

On May 30, 2022, Moultrie filed a grievance appeal (log #22-6-16843), in

which he stated:

I’m filing this grievance to the Warden of this

institution[5] per Rule 33-103.006, F.A.C. following a

use-of-force incident that occurred on 5/26/22 which

was totally against policy and procedure and could of

gotten individuals seriously hurt.

5 In addressing to whom the grievance should be sent, Moultrie checked the box next

to “Secretary, Florida Department of Corrections.” Doc. 25-1 at 19.

13

On 5/26/22 I declared a mental health

emergency due to my ignorance of consuming 10,

100mg Zoloft at one time and been awake for several

days straight. Combined with barely eating the mind-

bending effects of sleep deprivation had me both

paranoid and hallucinating. I seriously felt my

roommate wanted to kill me once I close my eyes or I

him if the being commanded me to.

After speaking to mental health they ordered

that I be placed in the holding cell but sometime later

security had to assemble a squad of officers to literally

carry me back into my original cell with my then

cellmate. Captain James moved me to put me in the

vacant psych cell next door but Sgt. Harper overruled

him and said I was going back in my original cell. For

a Captain to submit to a[] Sergeant in such a serious

security which could of gotten some[one] killed is

beyond me. Captain James shouldn’t be a Captain in

my opinion. After being placed in the cell I refused to

relinquish the hand restraints and an Ofc. returned a

moment later and deployed chemical agents stating I

was attacking my roommate. After being

decontaminated I was finally placed by myself where I

got some much needed sleep.

The[] purpose of this grievance is for both Capt.

James and Sgt. Harper’s handling of the situation was

only to place me [and] my cellmate in a dangerous

situation. I respectfully ask that an investigator

review the video footage of the incident to see exactly

everything they did wrong.

Doc. 25-1 at 19.

The Secretary’s office “returned without action” this grievance appeal,

noting that the appeal was not in compliance with the rules because Moultrie

14

either did not file a formal grievance addressing this issue or he did not include

a copy of it with his grievance appeal. Id. at 17. Additionally, the response

stated:

When making allegations of staff misconduct, you

need to provide all pertinent information, such as

names, dates, times, places and specific details, for a

proper review.

Furthermore, a copy of your grievance has been

forwarded to the Warden’s office for review.

Your request for retention and/or review of video/audio

needs to be initiated at the institutional level . . . .

Id.

On June 30, 2022, Moultrie authored two grievance appeals.6 The first

(log #22-6-19919) related to his request to preserve all video evidence relevant

to the May 26, 2022 use of force. Id. at 8 (noting he was appealing the response

to formal grievance log #2206-201-112). The Secretary’s office denied the

grievance appeal, advising that the institution properly responded to

Moultrie’s grievance. Id. at 7. In the second grievance appeal (log #22-6-20035),

Moultrie complained about the response he received to one of his formal

6 While Moultrie dated the appeals June 30, 2022, he submitted them on July 6, 2022.

See Doc. 25-1 at 8, 12.

15

grievances relating to Minshew’s close management referral. Id. at 12.

Specifically, Moultrie stated:

I submit this appeal to the Institution[’]s

response of log #2206-201-1117 referring to my CM

recommendation that was based on both false and

misrepresentation of the facts. The ICT and SCO did

not base their decision on facts presented in the video

footage. If the ICT members had considered my

evidence they would . . . have concluded the video was

not consistent with the CLO recommendation. That

following my psychological emergency I could not be

placed back in the cell with anybody due to

hallucinating and so I had force used against [me] to

place me in the cell with someone and refused to

relinquish the hand-restraints making it physically

impossible to hold anyone in a “choke-hold.” I was

sprayed with chemical agents for not giving up my

hand-cuffs. Not at anytime did I cause harm to or

attempt[] to cause harm to anybody and video evidence

shall support my allegations. . . .

Furthermore, based on all these alleged rule

violation I committed I did not receive any disciplinary

infractions for the video would not have supported any

of the fabricated account of events.

Also including institutional adjustment: The

CLO author stated I was released from CM on 5-21-22.

I came to this Institution f[rom] another open

Institution on 5-14-22. I was last on CM February

2020 and have displayed positive behavior from then

up to this incident which again I declare was

fabricated. The preservation and review of the video

shall prove the institutional staff acted outside the

scope of their employment, committed bad faith

7 Defendants did not include a copy of formal grievance log #2206-201-111.

16

exhibiting wanton and disregard from rights causing

me to los[e] liberty.

Id. at 12. The Secretary’s office denied Moultrie’s grievance appeal for the

following reasons:

Custody decisions, as well as, institutional and

program assignments are made in accordance with

security interests and the program and treatment

needs of the inmate. [T]hese[] decisions are based on

the professional judgement and correctional

experience of staff involved. Your placement in Close

Management has been a result of your own behavior.

Your Close Management status was reviewed in

accordance with Chapter 33-601.800, F.A.C. The

classification officer and the Institution Classification

Team (ICT) recommended you for Close Management

I and the State Classification Officer (SCO) approved

Close Management II. You have not shown that the

Report of Close Management included inaccurate

information. Your placement in Close Management is

not solely based on disciplinary reports that you have

received. It also may include any incidents that you

may have been involved in, as well. When the ICT and

SCO determine that you no longer pose a security

threat your Close Management status will be reduced.

Id. at 11.

Then, on July 8, 2022, Moultrie submitted a grievance appeal (log #22-

6-21071), in which he appealed the formal grievance he had submitted on June

21, 2022 (log #2206-201-140). Id. at 22. He sought clarification on two issues

relating to Minshew’s close management recommendation:

17

In filing this request for administrative remedy

or appeal, I am not referring it to me being placed on

Close Management and seeking a reversal. I[’]m filing

it solely as a “complaint against staff” and hoping to

receive a response either denying the allegation set

forth as “false” or “concurring” with it as “facts.” I

attached a copy of the DC6-233c and respectfully ask

if it[’]s no inconvenience would the reviewer of this

complaint base[] their response against real evidence.

1. In the DC6-233, CLO Minshew alleged I

was released from Close Management on 05/21/2022.

Is that true? If not, when does the record show I been

released from Close Management?

2. In my allegation I claimed officers had to

use force to put me in a cell with another prisoner and

after refusing to relinquish handcuffs an officer

returned seconds later a[nd] utilized chemical agents

on me, and then placed me in a cell by myself without

the assistance of staff. On the contrary CLO Minshew

claimed officers observed me assaulting my roommate

so chemical agents was deployed and then after

coming from decontamination I dropped to the floor

and officers carry me to my assigned cell. If available

I would ask that the use-of-force video camera be

utilized in assessing the truth in each allegation to

determine whose [sic] telling the truth. UOF date

5/26/22; H2 [at] 2pm-4pm.

Again I am not appealing the SCO decision for

CM approval in this grievance, I’m just illustrating for

the lawyers, the Court and dept. of Corrections that

CLO Minshew fabricated and misrepresented the facts

of the CLO statement of facts.

Id. at 22.

18

In response to this grievance appeal, the Secretary’s office stated:

You have raised issues in your appeal that were

not raised in the formal grievance and therefore, will

not be addressed by this office.

Your request for administrative appeal is in non-

compliance with the Rules of the Department of

Corrections . . . . The rule requires that you first

submit your grievance at the appropriate level at the

institution. You have not done so, or you have not

provided this office with a copy of that grievance, nor

have you provided a valid or acceptable reason for not

following the rules.

When making allegations of staff misconduct,

you need to provide all pertinent information, such as

names, dates, times, places and specific details, for a

proper review.

Furthermore, a copy of your grievance has been

forwarded to the Warden’s office for review.

The institution should be given the opportunity

to respond to your issue.

. . . .

Based on the foregoing information, your

grievance is returned without action.

Id. at 20.

Finally, on August 5, 2022, Moultrie submitted a grievance appeal (log

#22-6-23941) complaining about not receiving a response to formal grievance

log #22-6-20035, “in reference to Columbia C.I. staff depriving [Moultrie] of

19

liberty, concocting false allegations against [him] to be sent to Close

Management,” and another grievance he filed relating to the retention of the

use of force videos from the May 26, 2022 incident. Id. at 28. The Secretary’s

office “returned without action” this grievance appeal, with a notation that

grievance log #22-6-20035 was timely denied on July 20, 2022 and mailed to

Moultrie. Id. at 27.

b. Prison Litigation Reform Act (PLRA) Requirements

The Eleventh Circuit Court of Appeals has held the exhaustion of

administrative remedies by a prisoner is “a threshold matter” to be addressed

before considering the merits of a case. Chandler v. Crosby, 379 F.3d 1278,

1286 (11th Cir. 2004); see also Myles v. Miami-Dade Cnty. Corr. & Rehab.

Dep’t, 476 F. App’x 364, 366 (11th Cir. 2012)8 (noting that exhaustion is “a

‘threshold matter’ that we address before considering the merits of the case”)

(citation omitted). It is well settled that the PLRA requires an inmate wishing

to challenge prison conditions to first exhaust all available administrative

remedies before asserting any claim under 42 U.S.C. § 1983. See 42 U.S.C. §

8 The Court does not rely on unpublished opinions as binding precedent; however,

when cited in this Order it is because the Court finds them persuasive on a particular

point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022); see

generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

20

1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002). A prisoner, however, is

not required to plead exhaustion. See Jones v. Bock, 549 U.S. 199, 216 (2007).

Instead, the United States Supreme Court has recognized that “failure to

exhaust is an affirmative defense under the PLRA[.]” Id. Notably, exhaustion

of available administrative remedies is “a precondition to an adjudication on

the merits” and is mandatory under the PLRA. Bryant v. Rich, 530 F.3d 1368,

1374 (11th Cir. 2008). Not only is there an exhaustion requirement, the PLRA

“requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006).

Because exhaustion requirements are designed

to deal with parties who do not want to exhaust,

administrative law creates an incentive for these

parties to do what they would otherwise prefer not to

do, namely, to give the agency a fair and full

opportunity to adjudicate their claims. Administrative

law does this by requiring proper exhaustion of

administrative remedies, which “means using all steps

that the agency holds out, and doing so properly (so

that the agency addresses the issues on the merits).”

Pozo,[9] 286 F.3d, at 1024 (emphasis in original).

Woodford, 548 U.S. at 90. And, “[p]roper exhaustion demands compliance with

an agency’s deadlines and other critical procedural rules.” Id.

The United States Supreme Court has instructed that “[c]ourts may not

engraft an unwritten ‘special circumstances’ exception onto the PLRA’s

9 Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002).

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exhaustion requirement. The only limit to § 1997e(a)’s mandate is the one

baked into its text: An inmate need exhaust only such administrative remedies

as are ‘available.’” Ross v. Blake, 578 U.S. 632, 648 (2016). For an

administrative remedy to be available, the “remedy must be ‘capable of use for

the accomplishment of [its] purpose.’” Turner v. Burnside, 541 F.3d 1077, 1084

(11th Cir. 2008) (quoting Goebert v. Lee Cnty., 510 F.3d 1312, 1322-23 (11th

Cir. 2007)). In Ross, the Supreme Court identified three circumstances in

which an administrative remedy would be considered “not available.” Ross, 578

U.S. at 643-44. First, “an administrative procedure is unavailable when

(despite what regulations or guidance materials may promise) it operates as a

simple dead end—with officers unable or consistently unwilling to provide any

relief to aggrieved inmates.” Id. at 643. Next, “an administrative scheme might

be so opaque that it becomes, practically speaking, incapable of

use.” Id. Finally, a remedy may be unavailable “when prison administrators

thwart inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.” Id. at 644.

Because failure to exhaust administrative remedies is an affirmative

defense, a defendant bears “the burden of proving that the plaintiff has failed

to exhaust his available administrative remedies.” Turner, 541 F.3d at 1082.

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In accordance with Eleventh Circuit precedent, a court must employ a two-step

process when examining the issue of exhaustion of administrative remedies.

After a prisoner has exhausted the grievance

procedures, he may file suit under § 1983. In response

to a prisoner suit, defendants may bring a motion to

dismiss and raise as a defense the prisoner’s failure to

exhaust these administrative remedies. See Turner,

541 F.3d at 1081. In Turner v. Burnside we

established a two-step process for resolving motions to

dismiss prisoner lawsuits for failure to exhaust. 541

F.3d at 1082. First, district courts look to the factual

allegations in the motion to dismiss and those in the

prisoner’s response and accept the prisoner’s view of

the facts as true. The court should dismiss if the facts

as stated by the prisoner show a failure to exhaust. Id.

Second, if dismissal is not warranted on the prisoner’s

view of the facts, the court makes specific findings to

resolve disputes of fact, and should dismiss if, based

on those findings, defendants have shown a failure to

exhaust. Id. at 1082-83; see also id. at 1082 (explaining

that defendants bear the burden of showing a failure

to exhaust).

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015).

At step two of the procedure established in Turner, the Court can consider facts

outside the pleadings as long as those facts do not decide the case and the

parties have had sufficient opportunity to develop the record. Bryant, 530 F.3d

at 1376; see also Jenkins v. Sloan, 826 F. App’x 833, 838-39 (11th Cir. 2020).

In evaluating whether a plaintiff has satisfied the exhaustion requirement, the

Court notes that the Eleventh Circuit has determined that a “prisoner need

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not name any particular defendant in a grievance in order to properly exhaust

his claim.” Parzyck v. Prison Health Servs., Inc., 627 F.3d 1215, 1218 (11th

Cir. 2010).

c. Florida’s Prison Grievance Procedure

State law “determines what steps are required to exhaust.” Dimanche v.

Brown, 783 F.3d 1204, 1207 (11th Cir. 2015); see also Jones, 549 U.S. at 218

(stating that “it is the prison’s requirements, and not the PLRA, that define

the boundaries of proper exhaustion”). The FDOC provides an internal

grievance procedure for its inmates. See Fla. Admin. Code R. 33-103.001

through 33-103.018. Generally, to properly exhaust administrative remedies,

a prisoner must complete a three-step sequential process. First, an inmate

must submit an informal grievance at the institutional level to a designated

staff member responsible for the specific problem. See Fla. Admin. Code R. 33-

103.005. If the issue is not resolved, the inmate must submit a formal grievance

at the institutional level. See Fla. Admin. Code R. 33-103.006. If the matter is

not resolved through formal and informal grievances, the inmate must file an

appeal to the Office of the FDOC Secretary. See Fla. Admin. Code R. 33-

103.007. However, under certain specified circumstances, an inmate can

bypass the informal-grievance stage and start with a formal grievance at the

institutional level. See Fla. Admin. Code R. 33-103.005(1); 33-103.006(3). Or

24

an inmate can completely bypass the institutional level and proceed directly to

the Office of the FDOC Secretary by filing a “direct grievance.” See Fla. Admin.

Code R. 33-103.007(3). Emergency grievances and grievances of reprisal are

types of “direct grievances” that may be filed with the Office of the FDOC

Secretary. See Fla. Admin. Code R. 33-103.007(3)(a).10

Florida Administrative Code Rule 33-103.011 provides time frames for

the submission of grievances. Informal grievances must be received within

twenty days from the date on which the grieved incident or action occurred.

See Fla. Admin. Code R. 33-103.011(1)(a). Formal grievances must be received

no later than fifteen days from the date of the response to the informal

grievance. See Fla. Admin. Code R. 33-103.011(1)(b). Similarly, grievance

appeals to the Office of the FDOC Secretary must be received within fifteen

10 None of the enumerated exceptions apply to Moultrie’s excessive force claims; thus,

he was not permitted to skip the informal grievance step. See Fla. Admin. Code R.

33-103.005(1) (“Inmates may skip [the informal grievance] step and initiate the

process at the formal institutional level for issues pertaining to the following:

grievance of an emergency nature, grievance of reprisal, grievance alleging violations

of the Americans with Disabilities Act, medical grievance, grievance involving gain

time[,] . . . grievance challenging placement in close management or subsequent

reviews, grievances regarding the return of incoming mail[,] . . . grievances regarding

disciplinary action (does not include corrective consultations)[,] . . . and grievances

regarding allegations of sexual abuse . . . . Inmates may proceed directly to the Office

of the Secretary on the following issues[:] . . . grievance of emergency nature,

grievance of reprisal, protective management, admissible reading material, sentence

structure issues (release date calculations), and inmate banking issues. Grievances

alleging a violation of the Health Insurance Portability and Accountability Act

(HIPAA) must be filed directly with the Office of the Secretary . . . .”).

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days from the date that the response to the formal grievance is returned to the

inmate. See Fla. Admin. Code R. 33-103.011(1)(c). According to Rule 33-

103.014, an informal grievance, formal grievance, direct grievance, or

grievance appeal “may be returned to the inmate without further processing if,

following a review of the grievance, one or more . . . conditions are found to

exist.” Fla. Admin. Code R. 33-103.014(1). The rule provides an enumerated

list as “the only reasons for returning a grievance without a response on the

merits.” See Fla. Admin. Code R. 33-103.014(1)(a)-(y). A grievance can be

returned without action if it: is untimely; “addresses more than one issue or

complaint”; is “so broad, general or vague in nature that it cannot be clearly

investigated, evaluated, and responded to”; is “not written legibly and cannot

be clearly understood”; is a supplement to a previously-submitted grievance

that has been accepted for review; does not “provide a valid reason for by-

passing the previous levels of review as required or the reason provided is not

acceptable”; or does not include the required attachments. See Fla. Admin.

Code R. 33-103.014(1).

d. Exhaustion Analysis

Under the first step of the Turner analysis, the Court must review the

Motion and Response and accept as true Moultrie’s allegations. See Whatley,

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802 F.3d at 1209. In doing so, the Court finds that dismissal is not appropriate

at step one. Thus, the Court turns to the second step of Turner.

As summarized above, Moultrie filed several grievances, and the

grievance logs clearly reflect that he knew how to use the grievance process.

He contends, however, that the institution did not start processing his

grievances until he complained to the Secretary’s office on June 8, 2022, and

by the time he received the Secretary’s office’s June 14, 2022 response, more

than twenty days had passed since the May 26, 2022 incident.11 Thus,

according to Moultrie, “the Institution made it impossible for him to complete

the first two-steps of the grievance process within the ‘20 days from the time

[the] event being grieved occurred’” because the institution was not processing

grievances. Response at 6-7. In support, Moultrie cites to the grievance log

showing that he filed an appeal around June 8, 2022 (log #22-6-16842),

regarding the institution not following the grievance procedures, and a copy of

the Secretary’s office’s response dated June 14, 2022, was mailed to him on

June 17, 2022. See Doc. 25-1 at 3.12 Moultrie argues that this is further

11 The twentieth day would have fallen on June 15, 2022.

12 The record does not contain a copy of this grievance appeal or response. The appeal

log notes that Moultrie submitted a grievance appeal, which was given a class code

of “09E – NOT FOLLOW GRV PROC (GRV PROC)” around June 8, 2022, the

Secretary’s office “returned” the grievance appeal on June 14, 2022, and mailed a copy

of the response to Moultrie on June 17, 2022. Doc. 25-1 at 3. Because this grievance

27

confirmed by the informal and formal grievance logs showing that between

May 26 and June 15, 2022, the institution did not log any formal or informal

grievances from Moultrie, but on June 16 and 20, 2022, the institution started

processing his formal and informal grievances, respectively. Doc. 25-2 at 3, 13.

As an example, Moultrie asserts that the May 30, 2022 grievance appeal (log

#22-6-16843) was a copy of the grievance he submitted to the institution; but

as shown by the grievance logs, the copy provided to the institution was not

processed, yet the copy sent to the Secretary’s office was processed. See

Response at 6.

Moultrie’s argument is flawed. If an inmate does not receive a response

to a grievance within the time allotted, the inmate is permitted to proceed to

the next level of the grievance process. See Fla. Admin. Code r. 33-103.011(4)

(“Unless the grievant has agreed in writing to an extension, expiration of a

time limit at any step in the process shall entitle the complainant to proceed

to the next step of the grievance process. If this occurs, the complainant must

clearly indicate this fact when filing at the next step.”). Thus, if Moultrie

submitted an informal or formal grievance at the institutional level and did

not receive a response because the institution failed to process the grievance,

was “returned” instead of “approved” or “denied,” this grievance appeal was not

properly filed either.

28

Moultrie could have proceeded to the next level of review and “clearly indicate”

that he filed a grievance at the lower level but did not receive a timely response.

Moultrie did not do that here. Thus, his argument that the institution was not

processing his grievances between the date of the incident and June 15, 2022,

did not render the process unavailable to him or otherwise excuse his

noncompliance.13 See Bracero v. Sec’y, Fla. Dep’t of Corr., 748 F. App’x 200,

204 (11th Cir. 2018) (“The grievance procedure permitted [the plaintiff] . . . to

proceed with the next step in the three-step process after the expiration of the

prison’s time to respond to a grievance,” and “[w]hile the PLRA does not require

prisoners to grieve a breakdown in the grievance process, [the plaintiff] has not

shown such a breakdown[, a]nd the PLRA required him to pursue the

procedures that were available to him”).

Moultrie further argues that although his May 30, 2022 grievance appeal

(log #22-6-16843) was “returned without action,” the Secretary’s office actually

took action by sending his grievance to the Warden, and thus, he properly

exhausted his administrative remedies because “the Institution cannot deny

13 Additionally, after Moultrie received the Secretary’s office’s response regarding his

appeal about the institution not processing his grievances, and according to Moultrie,

the institution began processing his grievances, he also had the option of submitting

an untimely informal grievance and “clearly demonstrat[ing]” that “it was not feasible

to file the grievance within the relevant time periods and that [he] made a good faith

effort to file in a timely manner.” Fla. Admin. Code R. 33-103.011(2).

29

being aware of the complaint nor the issues raised in it.” Response at 9. But

the Secretary’s office’s response returned the grievance because it was not in

compliance with the FDOC’s rules, in that Moultrie failed to follow the three-

step grievance process. Because the response explicitly relied on a procedural

defect to “return” the appeal without action, the Court defers to that finding

for purposes of the exhaustion analysis. Filing a non-compliant grievance does

not satisfy the exhaustion requirement regardless of whether it puts the

institution “on notice” of the inmate’s claims. See Woodford, 548 U.S. at 90

(recognizing that the law requires “proper exhaustion of administrative

remedies, which means using all steps that the agency holds out, and doing so

properly”) (internal quotations and citation omitted).

Finally, while Moultrie discussed the incident in his June 21, 2022

formal grievance (log #2206-201-140), the purpose of that formal grievance was

to request an investigation into Minshew for filing a “false referral.” Doc. 25-2

at 19. Moultrie’s allegations in that grievance did not notify the institution that

Moultrie was actually complaining about the May 26, 2022 incident involving

Defendants James and Hansen.14 Regardless, Moultrie’s appeal of that formal

14 Moultrie also mentioned being forced into a cell with a cellmate and being sprayed

with chemical agents in grievance appeal log #22-6-20035, which was denied;

however, the purpose of that appeal was to call into question Minshew’s referral to

close management and the ICT members’ decision. Indeed, a fair reading of the

30

grievance was returned without action (log #22-6-21071). See Doc. 25-1 at 22.

Thus, Moultrie did not properly complete the three-step grievance process.

None of Moultrie’s other grievances address the claims in this case and

he did not properly follow the grievance procedure to exhaust his claims before

filing this case. Moreover, the record fails to support a finding that the

grievance process was unavailable to him. Thus, Defendants’ Motion is due to

be granted to the extent they seek dismissal of this case for Moultrie’s failure

to exhaust.

Accordingly, it is

ORDERED:

1. Defendants’ Motion to Dismiss (Doc. 25) is GRANTED to the

extent that this case is DISMISSED without prejudice for Moultrie’s

failure to exhaust his administrative remedies.

grievance appeal would not alert the Secretary’s office that Moultrie was complaining

about the actions of Defendants James and Hansen.

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2. The Clerk shall enter judgment dismissing this case without

prejudice for Moultrie’s failure to exhaust his administrative remedies,

terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this □□ day of July,

2024.

MARCIA MORALES HOWARD

United States District Judge

JAX-3 6/27

C:

Eddie James Moultrie, #J54558

Counsel of Record

32